Case Preview: Cusack v London Borough of Harrow

At issue in Cusack v London Borough of Harrow is whether, given a choice of apparently overlapping powers, a public authority is entitled to proceed under the power which is most economic to the public purse – or whether it is confined to the power most pertinently aligned to the object sought to be achieved.

The question arose in the context of a local authority’s proposed obstruction of the private right of access to the highway of the owner of land abutting the highway (“the frontager”). The Court of Appeal (in a judgment by Lewison LJ, with whom Ward LJ and Aikens LJ concurred), held that the local authority was confined to the statutory provision specifically tailored to the object of securing the highway safety objectives it sought to achieve. In this case, that entailed the payment of compensation to the property owner for damage sustained by reason of the works the Council proposed to undertake. The appeal against the Court of Appeal decision was heard by Lords Neuberger, Mance, Sumption, Carnwath and Hughes on 23 April 2013.

The relevant statutory provisions

The statute at issue in Cusack is the Highways Act 1980 (“the Act”). Section 66 of the Act confers on a highway authority a range of powers for the purpose of safeguarding persons using the highway. In particular, section 66(2) allows a highway authority to

“provide and maintain in a highway maintainable at the public expense by them which consists of or comprises a carriageway, such raised paving, pillars, walls, rails or fences as they think necessary for the purpose of safeguarding persons using the highway.”

By virtue of section 66(8), a highway authority is obliged “to pay compensation to any person who sustains damage by reason of” works undertaken by the highway authority under section 66(2).

As a matter of statutory construction, it is clear from a close reading of section 66 of the Act that the compensation to be paid under section 66(8) is not primarily contemplated as compensation for interference with property rights. Section 66(8) makes provision for compensation for any damage sustained by reason of works undertaken under section 66(2) or section 66(3). Section 66(5) makes it clear that section 66(3) cannot be exercised so as to obstruct private access to premises. No such limitation applies to the power under section 66(2). Hence it is clear from section 66 read as a whole that the power under section 66(2) can be exercised so as obstruct a private right of access to any premises. The inference must be that the compensation contemplated in section 66(8) is intended to cover any damage sustained by reason of the works – including, but not limited to, damage caused by obstructing a private right of access to premises.

Section 80(1)(a) of the Act allows a highway authority to “erect and maintain fences or posts for the purpose of preventing access to…a highway maintainable at public expense by them”. From the provision as a whole it is clear that this power cannot be used to obstruct a public right of way, but can be used to obstruct a private right of way.

Unlike section 66, however, section 80 contains no provision requiring compensation to be paid to any person who sustains damage by reason of the exercise of the power in question.

The facts

Mr Cusack is a solicitor whose practice is located at a former dwelling at 66 Station Road Harrow. He, his staff and his clients park in the forecourt in front of the building, which is open to the highway – the A409 – which at that point is a single carriage road in each direction, flanked by a pedestrian footway; colloquially, a pavement. In order to enter the forecourt, cars must drive over the payment, and in order to leave, they must reverse over the pavement and into the road. Mr Cusack has used this method of access to and egress from the property for many years.

In early 2009, the London Borough of Harrow, as highway authority, (“the Council”) wrote to Mr Cusack asserting that the movement of vehicles over the pavement “causes danger to both pedestrians and other motorists”. This was followed by a letter from the Council’s contractors in March 2009, advising that the Council was planning to erect barriers from 36 to 76 Station Road to prevent vehicles from driving over raised kerbs and footways. In response, Mr Cusack sought an injunction in the County Court restraining the Council from erecting the proposed barriers outside 66 Station Road.

Decision of the Court of Appeal

The County Court and the High Court accepted the Council’s contention that it could choose to proceed under section 66(2) or under section 80(1)(a) of the Act, and that, as the custodian of public funds, a public authority is entitled to invoke a power that does not entail the payment of compensation in preference to one that does. Hence each court in turn upheld the Council’s contention that it was entitled to erect the barriers pursuant to section 80 of the Highways Act, in terms of which no compensation was payable to Mr Cusack for any damage he sustained by reason of the works undertaken by the Council.

The Court of Appeal took a different view. Lewison LJ invoked the maxim of statutory interpretation: generalia specialibus non derogant (a general provision does not derogate from a specific one). In application, as the Court of Appeal explained at paragraph 19, this means that

“Where there is a general provision and a more specific provision, and a course of action could potentially fall within both the court will usually interpret the general provision as not covering matters covered by the specific provision. “ (Cusack v London Borough of Harrow [2011] EWCA Civ 1514.

It was the Council’s case that the purpose of the proposed barriers was to safeguard pedestrians and motorists using the A409. That purpose – “safeguarding persons using the highway” – was exactly what was contemplated by section 66(2). The Court accepted that the language of section 80 of the Act also gave a highway authority a power to obstruct a frontager’s private right of access to the highway, but held that the Council was required to proceed in terms of the power whose object was most closely aligned with the purpose which the Council sought to advance.

The Court of Appeal therefore held that the power under section 80 did not apply to the facts of the case, and granted Mr Cusack a declaration to that effect. To the Council, the Court granted a declaration that it had the power to undertake the proposed works under section 66(2) of the Act. If the Council chose to do so, compensation would be payable to Mr Cusack. The Court of Appeal declined to grant Mr Cusack an injunction, or to hold that section 80 can never be used to curtail a frontager’s right of access to the highway.

The Court of Appeal reached its decision without reliance on the interpretative obligation in section 3 of the Human Rights Act 1988 to read and give effect to legislation in a way which is compatible with Convention rights, so far as it is possible to do so. Hence it did not give detailed consideration to Mr Cusack’s claim that the application of section 80 of the Act would infringe his right to property under Article 1 of Protocol 1 to the Convention. It gave a brief indication of its view that section 80 of the Act was compatible with Article 1 of Protocol 1 (“A1P1). This was because the right of a frontager of access to the highway is one of the bundle of rights that ownership of a particular property carries with it. The Court considered that the exercise of the power under section 80 does not constitute a deprivation of property, but a control of use. Hence a wide margin of appreciation would apply, and the absence of compensation would not render the control unjustified or disproportionate.

The Court of Appeal granted permission to appeal on the point of statutory construction and the compatibility of section 80 with A1P1 – although the latter part of the judgment was obiter given the Court’s decision that the Council was required to undertake the proposed works pursuant to section 66. Should the Supreme Court take a different approach to the question of statutory interpretation, and decide that it is open to the Council to proceed under section 80, the A1P1 point and the interpretative obligation in section 3 of the Human Rights Act 1988 will need to be considered.